Stephens Lawyers & Consultants
The Australian Competition and Consumer Commission (‘ACCC’), the agency responsible for enforcement of competition, consumer and product safety laws in Australia, has issued its 2024/25 Compliance and Enforcement Policy and Priorities[i].
Building on the work commenced with last year’s compliance and enforcement priorities and reflecting cost of living and the digital economy as key challenges facing Australia’s economy and community”[ii], the ACCC’s compliance and enforcement priorities for 2024-25 will, in addition to its ‘enduring priorities’, focus on:-
- competition/anti-competitive conduct;
- fair trading and consumer protection issues in the digital economy (including digital platforms and online market places – especially in the video gaming and home electronics industries);
- consumer and competition issues and related pricing in the supermarket and aviation sectors;
- misleading pricing and claims in relation to essential services (focusing on energy, telecommunications and gas markets);
- environmental, sustainability and ‘net zero transition’ claims;
- compliance with unfair contract terms laws; and
- the National Disability Insurance Scheme (‘NDIS”) and NDIS providers’ compliance with their obligations under the Australian Consumer Law.[iii]
ACCC Compliance and Enforcement Priorities for 2024/25
The 2024/25 ACCC Compliance and Enforcement Priorities set out the areas which will be the subject of ACCC scrutiny in 2024/25. Some of the ACCC’s key areas of focus include:-
- Consumer and fair-trading issues relating to manipulative or deceptive advertising and marketing practices in the digital economy.
During 2024-25 the ACCC will be focusing, in particular, on misleading or deceptive advertising on digital market places including social media influencers who fail to disclose commercial relationships and paid promotions, online reviews, price comparison websites and in-app purchases. The ACCC will be targeting the video gaming industry which was recognised as having “significant size and reach, particularly with younger consumers”[iv].
- Competition, consumer, fair trading and pricing issues in the supermarket sector, with a focus on food and groceries
This is a new ACCC priority reflecting the current cost of living issues and growing concerns of Australian consumers and farmers about supermarket pricing. In addition, the ACCC will be scrutinising reports from consumers alleging false or misleading “was/now” or other pricing “specials” advertised by the supermarkets, and considering whether they may raise concerns under the Australian Consumer Law.
In response to the Australian Government’s direction (in January 2024) that the ACCC conduct a 12-month price inquiry into competition in the supermarket and grocery sector, the ACCC has commenced its supermarkets price inquiry and, on 29 February, 2024, released an issues paper and online consumer survey.[v]
- Competition, consumer and pricing issues arising from the pricing and selling of essential services, with a focus on telecommunications, electricity, gas and financial services.
Recognising the impact of continuing cost of living issues on Australian consumers, the ACCC’s focus will extend to anti-competitive conduct that reduces competition in the supply of essential services – in particular, conduct which:
- prevents consumers from making informed purchasing decisions about the acquisition of essential services;
- makes searching for, comparing and switching products confusing and harder than it should be for consumers and contributes to price escalation pressures (such as making misleading sales representations).
The ACCC will also be monitoring and reporting on the conduct of gas market participants, including compliance with the emergency $12/GJ cap on wholesale gas prices and with the Gas Market Code generally, which took effect in September, 2023 and applies to gas producers.
- Consumer and competition issues relating to sustainability and the ‘net zero transition’.
The ACCC is expanding its focus on misleading environmental claims to incorporate product safety (particularly around electrical products – including solar panels and household electrical consumer products) and competition concerns relating to sustainability – prioritising the importance of ensuring that these claims are accurate, substantiated and aligned with the understanding of the ordinary and reasonable consumer.
It reflects that many Australian consumers, wishing to reduce negative impacts on the environment, are choosing goods and services which are marketed using claims about environmental impact[vi] – and are often prepared to pay more for goods which are environmentally sustainable.
In December 2023 the ACCC published principles-based guidance to assist businesses in making clear and accurate environmental claims[vii]. In October 2023 the ACCC’s Lithium-ion Batteries Report was published[viii].
- Unfair contract terms in consumer and business contracts
The ACCC will be focusing on compliance with unfair contract terms laws – supported with the introduction, in late 2023, with a prohibition of and penalties for unfair contract terms in standard form agreements used by larger businesses in their dealings with consumers and small businesses. The ACCC will focus on ensuring that consumers and small businesses, including franchisees, enjoy the full benefit of these laws.
“Clauses that seek to unilaterally vary agreements, impose unreasonable fees and penalties are, in our view, unreasonable and make it difficult for consumers to cancel or end agreements” ACCC Chair, Ms Gina Cass-Gottlieb said.[ix]
- Improving industry compliance with consumer guarantees
Consumer guarantees remains the most complained about issue raised with the ACCC.
During 2024-25 the ACCC will continue to prioritise improving business compliance with consumer guarantees under the Australian Consumer Law – and will be expanding its enforcement focus to the consumer home electronics sector and the delivery timeframes for online purchases. It will also continue examination of the automotive and caravan sector, including through enforcement investigations.
- Competition and consumer issues in the aviation sector
In response to the high number of consumer complaints in relation to airline services (including in relation to rates of cancellation and delay) the ACCC will be monitoring and following through on allegations of anti-competitive behaviour and unfair business practices in the aviation sector.
- National Disability Insurance Scheme (‘NDIS’)
The ACCC has commenced chairing a joint taskforce involving the NDIS Quality and Safeguards Commission and the National Disability Insurance Agency (‘NDIA’) and will be focusing on improving compliance by NDIS providers with their obligations under the Australian Consumer Law.
In addition to the areas of focus, the ACCC compliance and enforcement priorities for 2024-25 include ‘enduring priorities’ – including the following:-
- Protecting the small business sector from anti-competitive conduct and unfair trading terms
The ACCC’s priority is on ensuring small businesses receive the protections of the competition and consumer laws and small business industry codes of conduct, including in agriculture and franchising – enhanced and supported by the ACCC’s educational and enforcement work implementing the new penalty regime for unfair contract terms in standard form agreements with small business.
- Scam detection and disruption, including through the ACCC Scamwatch service, and supporting the work of the National Anti Scam Centre
Established in July 2023, the National Anti Scam Centre (‘NASC’) – working with ASIC, banks, digital platforms and the telecommunications industry – has detected ‘investment scams’ and has taken action to have over 800 offending websites taken down. Work continues to ensure Australia becomes the world’s hardest target for scammers.
- Cartel Conduct
Cartel conduct is and will remain an enduring priority.
“Cartels undermine the competitive process removing competition, restricting output, and increasing price of everyday goods for all Australians”[x], says ACCC Chair, Ms Gina Cass-Gottlieb.
- Product Safety
Product safety remains an enduring priority for the ACCC and during 2024-25, the safety of young children will be a key focus of the ACCC’s product safety work.
ACCC Compliance and Enforcement Objectives & Strategy
While the ACCC is unable to pursue all matters that come to its attention, neither is the ACCC’s compliance and enforcement work limited to these priorities. Rather, the ACCC exercises discretion to direct resources to matters that provide the greatest overall benefit for the consumer and competition[xi] while also prioritising matters which come within the current priority areas. In addition to matters which come within the current priority areas, particular consideration is also given to matters which involve other priority factors such as:-
- conduct that is of significant public interest or concern;
- conduct that results in substantial consumer or small business detriment;
- conduct that has a significant impact on the cost of living;
- national conduct involving large traders – with the potential for greater consumer detriment and the likelihood that conduct of large traders can influence other market participants;
- conduct or practices that disproportionately targets consumers experiencing vulnerability or disadvantage;
- conduct involving a significant new or emerging market issue or where ACCC action is likely to have an educative or deterrent effect;
- whether the ACCC’s action will assist to clarify aspects of the law or new provisions of the Competition and Consumer Act 2010.[xii]
ACCC compliance and enforcement strategy
To achieve its compliance objectives the ACCC uses a number of flexible and integrated strategies [xiii], including:-
- Encouraging compliance with the law – including by educating and informing consumers, businesses and traders about their rights and obligations under the Act. Compliance activities undertaken by the ACCC can include:-
- Targeted education campaigns – to encourage compliance with the law;
- Scams detection and disruption;
- Industry engagement – including with key industry stakeholders;
- Research and advocacy – including research into potential new and emerging competition and consumer policy issues[xiv].
- Enforcement of the law – including through administrative resolution and through litigation/court action and other available formal enforcement actions;
- Undertaking market studies– including at the direction of the Minister – which can assist the ACCC to identify emerging competition and consumer issues as well as any market failures and how to address them;
- Working with other agencies to implement these strategies – including, for example, through coordinated approaches between state and territory consumer regulators which carry out the compliance and enforcement of the Australian Consumer Law.
Disclaimer: This update is not intended to replace obtaining legal advice
© Stephens Lawyers & Consultants, 18 March 2024; Authored by Rochina Iannella, Lawyer and edited by Katarina Klaric, Principal, Stephens Lawyers & Consultants
For Further Information contact:
Katarina Klaric
Principal
Stephens Lawyers & Consultants
Melbourne Head Office
Suite 205, 546 Collins Street, Melbourne VIC 3000
Phone: (03) 8636 9100 Fax: (03) 8636 9199
Sydney Office
Level 29, Chifley Tower, 2 Chifley Square, Sydney, N.S.W. 2000
Phone: (02) 9238 8028
Email: [email protected]
Website: www.stephens.com.au
All Correspondence to:
PO Box 16010 Collins Street West Melbourne VIC 8007
To register for newsletter updates and to send your comments and feedback, please email [email protected]
[i] ACCC, Compliance and Enforcement Priorities 2024-25, 7 March 2024 – Compliance and enforcement policy and priorities 2024-25 | ACCC
[ii] ACCC Media Release, Cost of living and digital economy shape 2024-25 compliance and enforcement priorities”, 7 March 2024; per Ms Gina Cass-Gottlieb, Chair
[iii] ACCC, Compliance and Enforcement Priorities 2024-25, 7 March 2024, Op Cit..
[iv] ACCC Media Release, Cost of living and digital economy shape 2024-25 compliance and enforcement priorities”, 7 March 2024; per Ms Gina Cass-Gottlieb, Chair
[v] ACCC, CEDA Speech by Miss Gina Cass-Gottlieb, Chair, 7 March, 2024: Committee for Economic Development of Australia (CEDA) speech 2024 | ACCC
[vi] ACCC, CEDA Speech by Miss Gina Cass-Gottlieb, Chair, 7 March, 2024; Ibid.
[vii] ACCC, ‘Making Environmental Claims: a Guide for Business’, 12 December 2023, Making environmental claims: A guide for business | ACCC
[viii] ACCC, ‘Lithium-ion batteries and consumer product safety’, 5 October, 2023 – Lithium-ion batteries and consumer product safety | ACCC
[ix] ACCC, CEDA Speech by Miss Gina Cass-Gottlieb, Chair, 7 March, 2024; Op Cit.
[x] ACCC, CEDA Speech by Miss Gina Cass-Gottlieb, Chair, 7 March, 2024; Op Cit.
[xi] ACCC, Compliance and enforcement policy and priorities 2024-25, 7 March 2024; Op Cit..
[xii] Ibid. at Pages 6 – 8
[xiii] Ibid.
[xiv] Ibid. at Page 7